Warsaw, 6 September 2017
BAS-WAP – 1455/17
Deputy Arkadiusz Mularczyk
Prawo i Sprawiedliwość (Law and Justice)
on the possibility of Poland seeking compensation from Germany in connection with international agreements for damage suffered during World War II
I. Theses of the opinion
1. During World War II, Poland suffered the greatest material damage and human losses of all European countries in relation to the total population and national wealth. These losses resulted not only from military activities, but above all from the German occupation policy, in particular intentional and organised extermination of the population living in the occupied territories of Poland, as well as intense exploitation of the Polish society, including forced labour and intentional destruction of property, among others demolition of Warsaw, the capital of Poland.
2. Therefore, it is reasonable to argue that the Republic of Poland is entitled to seek compensation from the Federal Republic of Germany and the allegation that these compensation claims had expired or had been barred by the statute of limitations is unfounded.
3. Taking into account the content of inter alia the fourth Hague Convention of 1907, agreements of the Potsdam Conference and German actions towards other countries affected by World War II, consisting in conclusion of agreements and payment of compensation, the German state should compensate the damage incurred by the Polish state connected with the World War II period.
4. According to post-war estimates, losses and material damage to state and private property caused by Germany in connection with World War II amounted to over 258 billion pre-war zlotys. When converted into dollars, it amounted to approximately USD 48.8 billion, using the exchange rate for August 1939, when 1 dollar equalled 5.3 zlotys. Losses in tangible assets were estimated at 62 billion pre-war zlotys – 3.5 times the value of the Polish state’s losses from the World War I period (17.8 billion pre-war zlotys).
5. The total biological losses of the Polish society amounted to over 6 million people. In 1946, the number of alive Polish citizens who had suffered damage resulting from crimes and terror of the Third Reich equalled 10 million 84 thousand 585 people.
6. Despite having suffered the greatest losses and destruction during the war beside the USSR, Poland and Polish citizens received cash payments from Germany whose value was not only disproportionate to the damage suffered, but also significantly lower than compensation paid by the FRG to other countries and their citizens. The FRG allocated approximately 600 million German marks for the benefit of Polish citizens, taking into account payments for victims of pseudo-medical experiments and for the Foundation „Polish-German Reconciliation”. This amount is not even 1% of the amount that the German government allocated after World War II to payment of compensation for citizens of Western Europe, United States, and Israel.
7. Pursuant to Article 3 of the fourth Hague Convention of 1907 concerning the laws and customs of war on land, which was signed also by Germany, a belligerent party shall be responsible for all acts committed by persons forming part of its armed forces. To this day, this obligation has not been fulfilled by Germany in respect of Poland.
8. Following the Potsdam Conference, it was decided that Germany will “be compelled to compensate to the greatest possible extent for the loss and suffering that she has caused to the United Nations and for which the German people cannot escape responsibility”. This provision has not been implemented to this day in respect of Poland. After the Potsdam Conference, the Paris Peace Treaties were signed in 1946. It concerned reparations for the countries of Western and Eastern Europe, Asia and Africa, but it did not include the Polish state.
9. Apart from imposing obligation on the USSR to settle Polish claims from its own share of reparations, the Report on the Potsdam Conference does not include any provision pursuant to which Poland would be entitled to any other direct payments from Germany.
10. In Memorandum of the Polish government submitted during a conference of deputy ministers of foreign affairs in London in January 1947, it was expressly stated: “pursuant to the Potsdam Agreement stating that Germany will be compelled to compensate to the greatest possible extent for the loss and suffering that she has caused to the United Nations – Poland reserves the right to submit further specific requests in that respect“.
11. After World War I, on 31 October 1929 Poland and Germany signed the socalled liquidation agreement, governing the issue of financial and property claims connected with the war and the Treaty of Versailles. The agreement was published in the Polish Journal of Laws. No such agreement has been concluded between Poland and Germany after World War II. However, the Federal Republic of Germany signed separate agreements with other countries concerning compensation – primarily the Bonn convention and bilateral agreements with 12 European countries in 1959-1964 on individual compensation for citizens of these states.
12. The unilateral statement of the Council of Ministers of 23 August 1953 on the Polish People’s Republic waiving its right to war reparations violated the then applicable Constitution of 22 July 1952, since matters connected with ratification and termination of international agreements lay within the competences of the Council of State, and not of the Council of Ministers. This statement was not submitted on the initiative of the Polish government, but on the request and as a result of pressure from the USSR. Moreover, in line with the minutes of the Council of Ministers of 19 August 1953, the waiver concerned only the German Democratic Republic.
13. The Polish People’s Republic (PRL) took many attempts to regulate the issue of German compensation after World War II. This happened, among other things, during the 21st and 22nd session of the United Nations Commission on Human Rights and was connected with the speech of a Polish delegate who said: “Polish citizens have not received compensation to this date due to discriminatory legislation of the FRG, and the FRG does not feel obliged to repay this tragic debt to the Polish nation“. For many years, the bipolar political division of the world made it impossible to settle the issue of compensation, which was connected with the existence of two German states and the FRG policy.
14. As A. Klafkowski stated: “International law does not recognise applicability of statutory limitations to war crimes and crimes against humanity. It also states that there is no statute of limitations for compensation for such crimes”.
15. In the Treaty on the Final Settlement with Respect to Germany, or the TwoPlus-Four-Treaty, signed on 12 September 1990, the issue of war reparations was not covered at all, only the problem of a general closure of World War II was handled. Moreover, Poland was not a party to that treaty.
16. Pursuant to the agreement of 16 October 1991 between Polish and German governments, the Foundation „Polish-German Reconciliation” was established. In total, from 1992 till mid 2004 the Foundation paid 731,843,600 zlotys to 1,060,689 persons, which amounted to 689.97 zlotys per person.
17. The failure to settle the issue of compensation claims for damage suffered during World War II for more than 60 years has led to the vast majority of 10 million 84 thousand 585 victims of crimes and terror of the Third Reich dying without having received any compensation.
18. The content of applicable international legal acts and post-war reparations practice, including discriminatory policy of the FRG towards Poland and Polish citizens in comparison with other countries which suffered smaller material damage and human losses, yet received significantly higher compensation, justifies Poland seeking compensation from Germany for damage suffered during World War II.
II. Subject matter of the opini
The subject matter of this opinion is legal issue of the possibility of the Republic of Poland seeking compensation from Germany for material damage and human losses caused by the German aggression during World War II, in particular the issue of whether other countries sought compensation from Germany for material damage and human losses. The opinion has been prepared at the request of Deputy Arkadiusz Mularczyk. The order was received by the Sejm Bureau of Research on 12 July 2017.
III. General considerations
War leads to damage arising among the participants of the armed conflict. This means both material damage and human losses. The issue of compensation connected with the end of war has been present in international law for a long time. In particular, the division into just and unjust wars, originating in the late Middle Ages, is known. It is connected with academic work of two rectors of the University of Kraków from the 15th century, Stanisław of Skarbimierz and Paweł Włodkowic of Brudzeń. The first one of them, in his sermons entitled O wojnach sprawiedliwych (De bellis iustis) and O rozboju (De rapina) provided the first systematic interpretation of public war law. He recognised war as an attribute of state power and distinguished just wars, i.e. those waged to defend the country or violated laws . According to Stanisław of Skarbimierz, compensation obligation was the result of initiating an unjust war, and it did not concern a state which started a just war and waged it in accordance with the law. The second above-mentioned rector represented the then Polish-Lithuanian state at the Council of Constance (1414-1418) in the dispute with the Teutonic Knights. He was also a proponent of acceptability of only just wars and stated that “since a war is acceptable in principle only if it is a defensive war, or possibly as the ultimate measure to restore the state which was unlawfully violated, then in principle the only purpose of taking booty should be ensuring compensation for the damage unlawfully caused”.
These views expressed in the 15th century constitute an important contribution to the development of armed conflicts science. In practice, the end of wars could mean, usually apart from territorial cessions for the benefit of the winning party, imposing contributions on the defeated state. This consisted in the defeated party paying a specific amount in kind or in cash. However, the issues of war indemnities arise in connection with armed conflicts of the 19th century, starting from the Napoleonic Wars, and the matter of war reparations appears above all in relation to the Treaty of Versailles ending World War I. An example of 19th century war reparations is the treaty ending the Franco-Prussian War, according to which France had to pay five billion francs to the German Empire (quoting the treaty: to His Imperial and Royal Majesty German Emperor). It was agreed that one billion francs would be paid in 1871 and the payment of the rest had to take place within three years from the treaty ratification.
Defining the rules of the law of war took place at the turn of the 19th and 20th century and was connected primarily with the adoption of the Hague Conventions by a number of states. The fourth Hague Convention of 18 October 1907 concerning the laws and customs of war on land was particularly important. Pursuant to Article 3 of this Convention: “a belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation” and “it shall be responsible for all acts committed by persons forming part of its armed forces”. The quoted provision entails an obligation of the state to pay compensation for the damage caused by violating the provisions of Hague rules and the responsibility placed on the state for all acts committed by its armed forces.
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1 See L. Ehrlich, Paweł Włodkowic i Stanisław ze Skarbimierza, Warsaw 1954, p. 24, 188 et seq.; J. Bardach, Historia państwa i prawa Polski, tom I do połowy XV wieku, Warsaw 1973, p. 432 et seq.; R. Bierzanek, Wojna a prawo międzynarodowe, Warsaw 1982, p. 31.
2 See L. Ehrlich, Polski wkład prawa wojny XV wieku, Warsaw 1955, pp. 71 – 73.
3 L. Ehrlich, Pisma wybrane Pawła Włodkowica, Warsaw 1968, pp. LXI, 74 – 75.
4 Prawo międzynarodowe i historia dyplomatyczna. Wybór dokumentów, introduction and edition by L. Gelberg, volume I, Warsaw 1954, p. 110.
5 See Z. Cybichowski, Wojna, (in:) Encyklopedia Podręczna Prawa Publicznego (konstytucyjnego, administracyjnego i międzynarodowego), volume II, ed.: Z. Cybichowski, Warsaw 1930, pp. 1128 – 1132; S. Dąbrowa, Haskie konferencje i konwencje prawa wojny, (in:) Encyklopedia prawa międzynarodowego i stosunków międzynarodowych, ed. A. Klafkowski, J. Symonides, Warsaw 1976, pp. 95 – 96.
6 Prawo międzynarodowe i historia dyplomatyczna. Wybór dokumentów, introduction and edition by L. Gelberg, volume I, Warsaw 1954, pp. 254 – 255.
7 More in: L. Domański, Wojna jako tytuł prawny do wynagrodzenia za szkody i straty. Zarys teorji i praktyki prawa międzynarodowego, prywatnego i publicznego, Warsaw 1915, p. 12 et seq.; Sz. Rundstein, Szkody wojenne. Teorya nadzwyczajnych indemnizacyj w prawie publicznem, Warsaw 1916, pp. 7 – 14, p. 120 et seq.; R. Bierzanek, Wojna a prawo międzynarodowe, Warsaw 1982, pp. 94 – 97.
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Source: SEJM RZEZYPOSPOLITEJ POLSKIEJ, BIURO ALANLIZ SEMOWYCH KANCELARII SEJMU – September 6, 2017.